The death of two Indian fishermen by alleged gunfire from an Italian registered tanker Enrica Lexie sparked a diplomatic row between the governments of India and Italy. More than two years after the incident, a case of murder has been registered against the two marines. The hearing of the case is currently underway in the Supreme Court of India.

On 15 February 2012, the Enrica Lexie, an Italian registered tanker was passing through the Laccadive Sea, about 20 nm (nautical miles, 1 nm = 1.852 Km) from the coast of Kerala, on passage from Singapore to Egypt. The ship had a crew of 34, including 19 Indians as well as a vessel protection detachment (VPD) comprising six Italian Navy marines. Around this time, the fishing trawler St Antony was on its way back home to Kerala after fishing for tuna in their traditional fishing grounds in the Lakshadweep. At about 1630hrs, the two came into close proximity of each other with disastrous consequences.

As per the fishing trawler, they were waiting for the tanker to pass when they were fired upon. The firing resulted in the immediate death of Celastine, the trawler’s driver, and grievous injury to Ajesh Binki, a crew member. The trawler manoeuvred to get out of range. Ajesh Binki died soon thereafter. A report was made to the Coastal Police in Kollam district and thence to the Coast Guard. Enrica Lexie continued on her way.

On receipt of the report, the Coast Guard launched a Dornier to search for and locate Enrica Lexie. Two ships, ICGS Samar and ICGS Lakshmibai, were sailed to intercept her. They found the ship about 39 nm from the site of the incident. It was at this time, after being intercepted by the Indian Coast Guard, that Enrica Lexie first reported the incident and described it as an attempted pirate attack. On hearing it, the Coastguard directed the ship to proceed to Kochi and escorted her there. She arrived on 17 February 2012 and was brought alongside on 19 February. The two Italian marines involved were charged with murder under Section 302 IPC and remanded to judicial custody.

The Indian investigation has brought out the following:-

No report regarding the suspected ‘piracy’ incident was made by the ship when it occurred. The vessel sent a report by e-mail to her owners only at about 1917 IST, after interception by the Indian Coast Guard. International procedure requires that the vessel report piracy events or attempts immediately to the Maritime Rescue Coordination Centre. No report was made at the time of the incident.

No arms or signs thereof were found on St Antony.

Marks of 15 bullets were found on St Antony, while two bullets were recovered from the bodies. A total of 20 bullets were fired. This would indicate that the boat was the target.

There is no evidence by way of bullet marks to indicate that Enrica Lexie had been fired upon by the trawler.

The maximum speed of St Antony was 8 knots, as compared to more than 14 for Enrica Lexie. There was no question of the trawler catching Enrica Lexie if the ship took avoiding action. In accordance the IRPCS, the trawler had the right of way and it was for Enrica Lexie to take avoiding action to ensure she did not collide with the trawler.

Umberto Vitelli, the Captain of Enrica Lexie, in his deposition to Indian investigators has said, “When they (the marines) were standing to starboard with their weapons, I never thought they would start to fire”. He adds that it was only after he heard gunshots that he increased speed, sounded the foghorn and the general alarm.

The ship’s Chief Officer told Kerala police that he used binoculars and did not see any person with weapons in the boat.

India’s Ministry of Shipping guideline SR-13020/6/2009-MG(pt) dated 29 August 2011 require commercial merchant vessels with PCASPs (Privately Contracted Armed Security Personnel) and VPDs (Vessel Protection Detachments) to obtain a Pre-Arrival Notification for Security (PANS) prior to entrance and transit through the Indian EEZ or the Indian Search and Rescue Region (ISRR). Enrica Lexie did not have PANS.

Enrica Lexie failed to archive data from the ship’s Voyage Data Recorder (the ship’s black box) as required by international regulations. International maritime rules insist that in the event of any incident, the ship’s master is to lock VDR data and surrender it to investigation officials immediately after berthing the vessel at the nearest port.

On the other hand, Chief Master Sergeant Massimiliano Latorre and Sergeant Salvatore Girone claim they thought the trawler contained pirates attempting to board. A classified but leaked Italian investigation report into the incident says:

Radar contact with the trawler was first made at 2.8 nm at 1625 IST.

The crew estimated that the boat was on collision course with the tanker. At this stage, it is pertinent that St Antony was on the tanker’s starboard bow. As such, it had the right of way under IRPCS and it was Enrica Lexie’s duty to take avoiding action.

When the boat was about 800m away, the Italian marines began to show light signals and raised their arms above their heads, so that they would be clearly visible.

The fishing boat continued to close. At 500m, the marines sensed it as a threat.

The ship’s captain activated the general alarm and sounded the siren (before the firing, as per this investigation). At this stage, the two marines fired a warning burst into the water.

The boat continued to close. At this stage, the two marines claim to have seen a long barrelled weapon carried over the shoulder in a posture clearly indicating an attempt to board.

Latorre again fired a burst of four bullets into the water. The boat continued to close.

The two marines then fired into the water (not at the boat). It is only when it was 50m away, after repeated firing that the boat pulled away. As per the Italian investigation, the marines never fired at the boat, hitting it and the killed fishermen was an accident.

In court, the Italian crew claim to have activated the Ship Security Alert System which automatically sends a message to the Italian Maritime Rescue Coordination Centre. However, no evidence to this effect could be produced.

More than two years after the incident, the status is as follows:-

A case of murder has been registered against the two marines.

Relatives of the two killed fishermen have been compensated to the tune of Rs 1 crore for each. Based on this, they have withdrawn their criminal complaint.

The Supreme Court has objected to this out of court settlement.

The Supreme Court has dismissed the Italian plea that Indian courts do not have jurisdiction as the marines were armed forces personnel on active duty and hence enjoy functional immunity.

The Supreme Court has also observed that the Kerala High Court does not have jurisdiction as the case occurred outside India’s Territorial Waters. It has ordered that a special Federal Court be constituted to try the marines under India’s maritime laws and UNCLOS 1982.

The case remains sub judice, with both countries claiming jurisdiction.

Italian attackers, Indian victims, case occurred in the Contiguous Zone where Italy claims only the flag state has jurisdiction as per UNCLOS. But India has claimed jurisdiction and on balance, global legal opinion appears to be on India’s side. There has been loose talk about whether this qualifies as an incident of attempted piracy (in the Italian perspective, it does) or terror (India for a long time considered trying the marines under the SUA Act, which would have in effect painted Italy as a terrorist state, but has now decided to restrict the charges to murder).

The case remains sub judice. It does, however, bring out the dangers of unilateral action by PCASPs and VPDs. It also raises a number of questions, some of which are:-

Is the Indian action in trying the case as one of murder correct?

In view of the Supreme Court observation, is there need to constitute a permanent federal court to deal with such cases?

How should the international community investigate and deal with such cases?